What happens if a U.S. presidential candidate dies before the election?
U.S. President Donald Trump has COVID-19. The 74-year-old has entered quarantine in hospital with his wife, Melania, who has also contracted the virus.
Trump’s age puts him at risk of dying from the virus. One recent U.S. suggested the COVID-19 mortality rate for people over 60 is 1.7%.
What happens if Trump - or his rival, Joe Biden - die before the November 3 election?
It’s complicated.
Understanding the electoral college
Before anything else, it’s worth understanding exactly how the U.S. chooses its President - because it’s actually not by popular vote.
Instead, citizens vote for state electors. The number of electors a state has varies depending on its size.
Those electors then tell Congress after the election who they choose as President, in a process named the electoral college. They have always followed the will of U.S. voters.
But a quirk in the system means that, for a large chunk of state electors, there’s actually no legal reason why they can’t just vote for who they want.
For example, U.S. State A elects Joe Bloggs to Congress. It’s then up to Bloggs to decide how to vote in the Congress vote for President, but it would be unprecedented for Bloggs to vote for anyone other than who the majority of people in his state voted for. If Bloggs goes against the popular vote for any reason (whether the candidate dies, or they’ve decided to disagree) it would likely result in a number of court cases at a state or federal level.
So what happens if Trump or Biden were to die before November 3?
Both parties - Trump’s Republican Party and Biden’s Democrats - have processes in place for if the candidate they nominated died before election day. They would both choose a new nominee.
But most states only give parties until September to certify which candidate is on the ballot. And besides, millions of Americans have already voted via mail.
A major-party candidate dying before election day has never happened before.
If it happened now, there are a couple of most-likely scenarios.
1 - The courts step in, letting major parties replace the deceased candidate with another
If, say, Biden were to die two weeks before the election and the Democrats quickly nominated his Vice Presidential candidate Kamala Harris in his place, it would require the state or federal courts to allow ballots already cast for Biden to be granted to Harris.
According to New York University constitutional law professor Richard H. Pildes, “it’s hard to imagine courts refusing to permit one of the two major parties to replace a deceased candidate’s name with that of a validly chosen replacement.”
2 - The electoral college steps in
It’s a weird, grey legal area that has never properly been tested, but the electoral college could step in.
Experts say there’s room in the law for electors in the electoral college to follow what a party wants - if the Democrats have said that all votes for a deceased Biden should now carry over to Harris, the electoral college might be able to respect that.
There are a lot of messy state law and constitutional law issues - and the courts would likely still be needed to help sort them out.